In the case of Kellogg v. The Chicago Northwestern R. R. Co., Mr. Chief-Justice DIXON has illustrated with much vigor the difficulties in the way of applying the common law doctrine of contributory negligence to actions against railway companies by adjacent land-owners for damages occasioned by the negligent management of their engines. If this were an action at common law, I should be very much disposed to follow the doctrine of that case.
This, however, is an action under our statute — ch. 149, sec. 8 — by which it is provided that "the proprietors of every railroad shall be liable for all damages which shall accrue to any person or property by fire or steam from any locomotive or other engine on such road." By section 9 it is provided that "such proprietor shall have an insurable interest in all property situated on the line of such road, exposed to such damage, and may effect insurance thereon for their own benefit." By section 10 a certain interest is given to such proprietors in any insurance effected by the owners.
It seems to me that the effect of this legislation is to make the proprietors of a railroad liable as insurers. This construction of the statute makes the liability exactly commensurate with the indemnity which the proprietors are entitled to provide for, and to claim under the statute.
Contributory negligence does not furnish any defence to any action by the insured on the policy of the insurance. By the statute, the proprietors are liable for all damages which shall accrue, c., and have an insurable interest in all property exposed to such damage. Negligence, either of the railroad or of the land-owner, would not, according to the authorities, be a defence to an action by the proprietors to recover on their policy the amount of the loss insured. It would be odd enough if the proprietors could recover on their policy, and then turn round and defeat the property-owner on the ground of contributory negligence. Chandler v. Worcester Ins. Co., 3 Cush. 328; Johnson v. Berkshire Ins. Co., 4 Allen 338; Par. on Con., B. 3, sec. 3, C. *Page 140
Parsons, in commenting on Chandler v. Ins. Co., after saying that the supreme court holding that there might be a degree of negligence which would discharge an insurer, adds, — "But the court in their decision so described the negligence, which would alone have this effect, that there was no new trial, the insurers paying the loss, with some abatement." I think that we ought to hold a reasonable construction of this statute to be, that the defendants in this case ought to be held liable as insurers, and that the jury ought to have been instructed that no negligence of the plaintiff would discharge the defendants, unless so great as to be equivalent to fraud.
STANLEY, J., C. C., concurred.
Verdict set aside.